Volume 30, Issue 40, 28 October 2013

Abbott and Davis Fight Before Fight Begins

They haven’t even won their respective primaries yet, but the leading candidates for Texas governor — Republican Attorney General Greg Abbott and Democratic state Sen. Wendy Davis — are engaged in a bitter fight in federal court.

It’s not over who should be governor. It’s about money — and bragging rights.

The gubernatorial contenders and their attorneys are battling over some $600,000 in legal fees stemming from a redistricting lawsuit that, when all was said and done, preserved the racial and political makeup of Davis’ Fort Worth swing district.

Republicans in the Legislature in 2011 drew her seat in a way that would have made it virtually impossible for a Democrat to win it, but Davis argued their plan would diminish minority voting rights. The courts sided with her, and she was re-elected in 2012, even though the district still leaned toward the GOP.

Her legal victory was made official in early September — more than two years after the Republican Legislature attempted to put in place its own controversial redistricting plan — when a three-judge federal panel in San Antonio ruled in a “final judgment” that she was entitled to recoup her legal costs.

“As prevailing parties, Plaintiffs are awarded their reasonable attorneys’ fees and costs,” the court said in its Sept. 4 ruling.

Abbott isn’t letting go of the money without a fight.

He argues in recent federal court filings that Davis is not, in fact, the “prevailing party” and that the fees being demanded by the plaintiffs are inflated and unreasonable.

“The Davis Plaintiffs are not entitled to recover any attorneys fees or costs,” Abbott and his legal team say in pleadings filed on Oct 4, a month after the final ruling. The state claims the “prevailing party’’ status doesn’t apply because the plaintiffs “never received a judgment on the merits” of their complaint against the redraw. The two sides eventually settled on a map that left Davis’ district virtually unchanged, but not before a lot of legal wrangling.

The state also claims that the fees and hourly rates demanded are too high and potentially duplicative.

(In a related dispute, plaintiffs in the fight over state House and congressional redistricting plans are trying to recover about $6 million in legal fees, but the Davis case has advanced further in the courts).

Both Abbott's campaign and his state office declined to comment about the ongoing fee dispute.

But state Sen. Tommy Williams, who until last week was chairman of the Senate Finance Committee and who remains a close Abbott ally, said he found it “outrageous” that a state senator would be requesting money from taxpayers to “protect her own political interests.”

“I don’t think it’s appropriate at all,” he said.

Democrats say it’s inappropriate that Abbott is using state tax dollars to fight legal fees stemming from a losing battle to adopt flawed maps.

“Greg Abbott can’t stand the thought that the story here is that Wendy Davis won and he lost. He wants to keep the myth out there, the argument, that ‘she didn’t beat me,’” Davis adviser Matt Angle said in a telephone interview. “They got their head handed to them.”

While this is a legal battle, the political overtones are impossible to ignore: Davis spent an estimated $200,000 out of her campaign account to defray legal costs in the redistricting fight; if the court approves her team’s request for reimbursement, some of that dough presumably would wind up helping to finance her run against Abbott.

Team Davis also is asking for about $40,000 for Angle’s firm, Angle Strategies. Angle, a former top aide to U.S. Rep. Martin Frost, D-Fort Worth, also heads the Lone Star Project, which barely lets a day slip by without issuing an attack on Abbott and state Republican leaders. And he’s the brother of J.D. Angle, Davis’ top campaign consultant.

Abbott’s team, calling the services Angle’s firm provided “secretarial” in nature and not reimbursable, referred to Angle’s role as an adviser to Davis and U.S. Rep. Marc Veasey, D-Fort Worth, in the pleadings.

“The Voting Rights Act contains no provision that would require the state of Texas to compensate a political consulting firm for services performed on behalf of a candidate,” Abbott and his team wrote.

Angle said that he testified during the trial as a redistricting expert, provided demographic analysis and participated in the map-drafting that resulted in the settlement. He said his firm also helped review legal briefs and performed tasks that lawyers or their paralegals and experts otherwise would have to do.

It may not get resolved anytime soon — a scenario both sides seem to agree on. Angle predicted the fee fight would outlive the race for Texas governor.

“They just want to keep this going so there’s not a final determination that Greg Abbott lost and Wendy Davis won,” he said.

Surprise Could Remove Senate Democrats' Safety Margin

Sometimes, it's the non-announcement that gets the political headline. Fort Worth City Councilman Joel Burns won’t run for the Senate seat left open by Wendy Davis’ decision to run for governor, greatly increasing already high odds that the seat will go from the Democrats to the Republicans.

That would put the Republicans just one seat away from a controlling two-thirds majority in the Texas Senate, a bit of math that increases their chances of getting their way on most issues even as it incrementally increases the clout of each of the Senate’s 11 Democrats.

That power comes from the ability to be the swing vote on issues that would otherwise be blocked. If any one senator is the difference between one outcome or another, that senator’s power — at least in that moment — rises dramatically.

On the other hand, the majority in such a case would only need one more vote. It all makes for some interesting wheeling and dealing. And it means the Democrats in the Senate can't afford to lose a single vote on partisan issues. In the current configuration, with 12 Democrats, they can afford to let someone with personal or political reasons side with the GOP.

Unless someone pulls off an upset in Tarrant County, that's over.

Burns was the Democrats’ best hope of holding a seat that shouldn’t, by the numbers, be theirs to begin with. Davis has won twice in the district, both times in years when the presidency was on the ballot and when Barack Obama was the Democratic nominee. In years with a governor’s race leading the ticket and no national election, it moves from a Republican-leaning swing district to a Republican district.

Davis would have had a challenging re-election had she stayed, and the question now is whether anyone else on the Democratic side can make a race of it this year. Burns, who is both well-known and politically plugged in, was their first choice, and now he’s out.

Various senators and candidates have talked about dumping the two-thirds rule in 2015, and if that happens, this is small beer. But if the rule is still in place, a flipped seat in SD-10 could be a big deal. And depending on the issue — this isn’t always a partisan thing — any senator could get a chance to taste real power.

Businesses Prep for New Service Dog Regulations

Adan Gallegos relies on his service dog, Bootz, to cope with the effects of war. The duo helped to inspire legislation that come Jan. 1 will have state law more closely mirror federal ADA guidelines.

*Correction Appended

Bootz is an unexpected service dog — a rat terrier Adan Gallegos says he couldn’t function in public without. Since 2010, the disabled Army veteran in San Antonio has relied on Bootz to remind him to take his medication, keep him calm in large crowds and alert him to someone approaching from behind.

“What I was getting was a lot of people questioning — they’re used to seeing a person who is blind that has golden retrievers or labs,” Gallegos said. “And I have this small rat terrier, and I have to educate people that it is a PTSD service dog.”

Come Jan. 1, state law will come into line with the federal Americans with Disabilities Act, which lists post-traumatic stress disorder as a condition that qualifies for the use of a service dog. House Bill 489, by state Rep. José Menéndez, D-San Antonio, outlines what constitutes a service animal, where they're allowed to be and the rights of their owners.

The legislation spells out the two questions a business's employees can ask the owner of a service dog, if the person’s disability is not apparent. In accordance with ADA guidelines, an employee will only be able to inquire whether the service dog is required because the person has a disability and what type of work the dog is trained to perform.

“I’m advising my members to give every one of their employees a sheet of paper that has the two questions,” said Will Newton, Texas state director for the National Federation of Independent Business. “And it’s sad that we’ve come to that, but there are two questions, and if you deviate from those two questions, then you’re subject to legal action.”

Business owners who violate the law face up to a $300 fine and 30 hours of community service.

Newton said he worried the legislation would subject NFIB’s 25,000 members — many of whom are veterans themselves — to lawsuits. He called the original version of the legislation “an ADA lawyer’s dream.”

“I didn’t want to create a bill that would create opportunity to just get people in trouble,” Menéndez said. “That was never my intention.”

NFIB and Texans for Lawsuit Reform were among the groups that worked with him to narrow the bill’s scope. One change defined “service animals” as “canines,” limiting the potential for someone to bring a pony into a restaurant and call it a service animal, Newton said.

Gov. Rick Perry signed the bill into law this summer in San Antonio, alongside Bootz and Gallegos. “This bill is a smart way for us to give back and help any Texan, including our veterans, lead a healthy, productive life,” Perry said.

Bootz and Gallegos helped to inspire the legislation.

Bootz wears a harness that identifies him as a service dog. But in October 2011, that wasn’t enough to stop the owner of Billy Bob's Beds in San Antonio from throwing the pair out of his store. Gallegos filed a lawsuit against Bill Gholson for the way he was treated. The case was eventually settled out of court.

Menéndez said that the incident showed the gaps that existed between the ADA and state law and that he wanted Texas law to more clearly reflect federal guidelines.

“We think we brought some clarity to the issue,” Menéndez said.

And fairness: People who fraudulently portray a dog as a service animal will be subject to the same penalties as business owners.

Gholson has already changed how he does business. His store website displays a banner welcoming both members of the military and service dogs inside his store. Gholson said he's personally seen the benefit service dogs provide to veterans.

Newton says that businesses in general are ready to adhere to the new regulations, but that they’re “getting fed up with all the mandates, with all the big government coming out of not just Washington, but Austin.”

*Editor's Note: The original version of this story incorrectly stated that the law included the eligibility requirements for service dogs, saying that they must be trained by a person certified by the National Association for Search and Rescue or a similarly recognized state or national agency. That provision was not included in the final legislation.

Newsreel: A&M Nazareth, Cruz Tour and Nugent Campaigns

This week in the Texas Weekly Newsreel: U.S. Sen. Ted Cruz checks in with voters on a post-shutdown tour of Texas, surprising moves on the 2014 campaign trail and Gov. Rick Perry announces a Texas A&M campus in Israel.

Is Ted Cruz more or less popular with Texas Republicans now than he was before the federal government shutdown?

• "I think it depends on which group of Republicans to which you refer. The hacked off far right, he is more popular. For the more moderate and mainstream Republicans, less popular."

• "Primary voters mostly"

• "From personal observation there are some county club Republicans who are uneasy with the intensity of Cruz's approach, but the great majority of R primary voters are very happy with Cruz. Want proof? There are currently 21 statewide Republican candidates running for 7 executive offices. Name one of those 21 who is publicly distancing him or herself from Ted Cruz."

• "You have to start categorizing Republicans in different camps now. The primary-election Republican believes Ted Cruz is the second coming. However, the general election Republican is starting to question his tactics."

Will Republican candidates in Texas embrace or shun Cruz’s ideology and style in the 2014 cycle?

• "All of them will embrace it in the primary - some may drop off a bit for the general - but Cruz will be in demand."

• "The evidence thus far is that the majority of Republican candidates for statewide office are embracing Cruz's far-right ideology and style. Some, like Branch, who has had a fairly moderate reputation in the House of Representatives, have chosen to embrace the Cruz ideology and Cruz himself. Ditto for Abbott and Cornyn."

• "That's what it will take to win a Republican primary. It's a toss up with the general election."

• "Cruz's efforts will inspire a whole new wave of Tea Party candidates, volunteers and donors. The liberal fantasy (offered by Obama, Schumer, and others) that the fiscal conservative 'fever' is going to break any moment now is deeply out of touch with the lives and beliefs of millions of working Americans, and especially out of touch with a very large number of Texas voters."

• "Smitherman will FIGHT, FIGHT, FIGHT for us...so will Paxton. And Dan Patrick. And Staples. And Patterson. And Abbott. And Toth. And Creighton. And Opiela. They're all reading from the Cruz play book and embracing his style and brash rhetoric."

• "By and large, Republican candidates will run their own races."

• "I don't think that the hand wringing and protestations about how Cruz has acted is justified. Regardless of whether I agree with him, he's doing exactly what he said he would do: not be part of the establishment in DC and play their game. At least he is doing walking the talk, which is more than most of the people complaining can say. I think the jury is out on Cruz and he may come out of this a whole lot more influentially than most think."

The Calendar

The Week in the Rearview Mirror

Records requests that University of Texas System Regent Wallace Hall filed with the University of Texas at Austin were the subject of hours of testimony during a legislative committee hearing this week, as witnesses discussed the volume and legality of the requests, as well as the motivation behind the requests. The House Select Committee on Transparency in State Agency Operations is mulling whether to file articles of impeachment against Hall, in part for the strain that he is accused of putting on UT-Austin’s staff. Barry Burgdorf, the former vice chancellor and general counsel for the University of Texas System, told the panel that some system regents' "clear intent" was to "get rid of" Bill Powers, the president of the University of Texas at Austin.

The state’s top Democratic donor, trial lawyer Steve Mostyn, is spearheading a new group of like-minded attorneys who want to shake up politics — and the storied Texas Trial Lawyers Association along with it. He and two heavy-hitter trial lawyers, Amy Witherite of Dallas and Kurt Arnold of Houston, have formed a new group called the Texas Association of Consumer Lawyers. Mostyn said the group was created in part out of frustration that dues being paid to the Texas Trial Lawyers Association are financing way too much overhead — leaving far too little money for campaign spending.

Gubernatorial candidates Greg Abbott and Wendy Davis are throwing their support behind the constitutional amendment that would fund projects designed to help the state meet its growing need for water. Abbott, the state's attorney general, has not been a vocal advocate of Prop 6 — which must get voter approval to go into effect — but his campaign said he intends to vote for it. So does Davis, a state senator from Fort Worth. Early voting in the constitutional amendment election started Monday and ends Nov. 1. Election Day is Nov. 5.

With days remaining until new abortion regulations take effect in Texas, attorneys for abortion providers and the state of Texas presented their final arguments on whether those restrictions meet constitutional muster. “The result is much more obvious to each side than it is to me,” said U.S. District Judge Lee Yeakel, who is presiding over a case in which the abortion providers’ attorneys are seeking to block two of the provisions state lawmakers approved in July. “I recognize the clock is ticking toward October the 29th. I think both sides raised strong issues, and I will get a final judgment out as quickly as I can get a final judgment out.”

A year ago this week, a toll road opened in Central Texas that represented two milestones for the state. While its posted 85 mph speed limit — the highest in the country — drew international headlines, many state and local leaders were more interested in the road’s unique financing: A private consortium designed and built the road and agreed to operate and maintain it for 50 years in exchange for a cut of the toll revenue. But SH 130 has not been the immediate success story its backers had hoped. Last week, lower-than-expected traffic revenue prompted credit ratings firm Moody's Investors Service to severely downgrade the SH 130 Concession Company’s debt and warned that a default may not be far off.

Political People and their Moves

Rep. Stefani Carter, R-Dallas, dropped out of the race for Texas Railroad Commission, saying she will instead run for reelection in HD-102. But her contest got busy while she was out, and three of the contestants quickly let the world know they will remain the race. The RRC contest is crowded too, with former state Reps. Ray Keller, R-North Richland Hills, and Wayne Christian, R-Center; Becky Berger of Schulenburg, a geologist; Malachi Boyuls, a Dallas attorney; Joe Pool Jr. of Austin, an attorney; and Ryan Sitton of Friendswood, an engineer.

Former state Rep. Tommy Merritt, R-Longview, will run for agriculture commissioner. Other Republicans in that contest include former Rep. Sid Miller, Uvalde Mayor J Allen Carnes and Eric Opeila, a lawyer and former staffer at the Texas GOP. On the Democratic side? Kinky Friedman. And there is this: Miller announced that Ted Nugent will be his campaign treasurer.

Linda Vega, an attorney from Houston, announced she will challenge U.S. Sen. John Cornyn in the GOP primary.

Judge Carlo Key of Bexar County Court #11, swapped his red flag for a blue one, announcing he is leaving the Republicans for the Democrats.

Glenn Hegar picked up an endorsement from Comptroller Susan Combs in his race to succeed her in that office. Combs decided not to seek another term, or another office.

The Texas Restaurant Association endorsed Greg Abbott for governor.

Pete Geren of Fort Worth and Dr. Cynthia Mulrow of San Antonio to the board of the Cancer Prevention and Research Institute of Texas Oversight Committee. Geren (brother of Charlie, a state rep.) is president of the Sid Richardson Foundation and a former congressman. Mulrow is senior deputy editor of Annals of Internal Medicine.

Deaths: Grant Jones, an Abilene Democrat who served for eight years in the House and 16 in the Senate, where, among other things, he chaired the Finance Committee. He was 90.

Quotes of the Week

He’s surrounded by enemies up there, and I want to show support for him in Texas. I’m just hoping it’s like this around the country.

Ted Cruz supporter Sharon Alford, quoted in The Washington Post at a rally in Houston

I’m all about accepting all the blessings I can get from the Lord, so that’s all good.

Gov. Rick Perry, quoted in the San Antonio Express-News answering a question as to whether Texas could receive blessings for Texas A&M's decision to open a campus in Nazareth

I do media every day, and I'll raise as much hell as I can.

Rock musician Ted Nugent on his new role as the treasurer and co-chairman of former Rep. Sid Miller's campaign for agriculture commissioner

I’m not interested in being part of a country club. I’m interested in getting something done.

Steve Mostyn, a trial lawyer and the state's top Democratic donor, on the formation of a new trial lawyer group

I regret how I handled that situation, and I would like to offer you my apologies.

U.S. Rep. Randy Neugebauer, R-Lubbock, in a letter to the National Park Service apologizing for his confrontation with a park ranger during the government shutdown

Quite simply, the job I most want is the one I already have.

Fort Worth City Councilman Joel Burns in an email to supporters announcing that he would not run to succeed Wendy Davis in the Senate

Texas Weekly: Volume 30, Issue 40, 28 October 2013
John Reynolds, Editor. Copyright 2015 by The Texas Tribune. All Rights Reserved.
Reproduction in whole or in part without written permission from the publisher is prohibited.
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